City of Seattle v. Bell

• Decision Date: 03 July 1939
• Docket Number: 27548.
• Parties: CITY OF SEATTLE v. BELL, Police Judge.
• Court: Washington Supreme Court

92 P.2d 197

199 Wash. 441

CITY OF SEATTLE v. BELL, Police Judge.

No. 27548.

Supreme Court of Washington

July 3, 1939

Department 2.

Certiorari proceeding by the City of Seattle against Willam R. Bell, as Police Judge, to review proceedings in the criminal action of the City of Seattle against E. Rogers and another. From a judgment for petitioner, the respondent appeals.

Appeal dismissed.

Appeal from Superior Court, King County; Donald A. McDonald, judge.

Edgar S. Hadley, of Seattle, for appellant.

A. C Van Soelen, C. V. Hoard and Tom M. Alderson, all of Seattle for respondent.

SIMPSON Justice.

This is an appeal from a judgment of the superior court entered after a hearing upon a writ of certiorari issued out of that court and directed to William R. Bell, as police judge of the city of Seattle.

December 16, 1938, upon petition of J. Bruce MacDougall, acting city attorney of the city of Seattle, the superior court of King county issued a writ of certiorari directed to William R. Bell, as police judge, commanding him to certify and transmit to the superior court all records and proceedings of the police court in the criminal action of the city of Seattle against E. Rogers and D. Campbell.

In response to the writ the police judge transmitted the records to the superior court December 19, 1938. The records disclosed that October 25, 1938, criminal complaints were filed in the police court of the city of Seattle charging E Rogers and D. Campbell with the commission of a misdemeanor prohibited by §§ 245, 246, and 276 of Ordinance No. 48022. These sections read:

'Sec. 245. Any person violating or failing to comply with any of the provisions of this ordinance shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine in any sum not exceeding three Hundred ($300.00) Dollars, or by imprisonment in the city jail for a period not exceeding ninety (90) days, or by both such fine and imprisonment.'

'Sec. 246. Every person concerned in any act or omission in violation of this ordinance, whether he directly performs or omits to perform any act in violation of this ordinance, or aids or abets the same, whether present or absent, and every person who directly or indirectly counsels, encourages, hires, commands, induces or otherwise procures another to commit such violation is, and shall be, a principal under the terms of this ordinance and shall be proceeded against and prosecuted as such.' 'Sec. 276: It shall be unlawful for any person either as principal, managing agent or supervisor, or as solicitor, collector or salesman, to solicit, collect or receive money or property, or to solicit the sale of or to sell an article or thing or ticket of any kind where it is represented that the proceeds of such solicitation and/or sale, or any part thereof, are to be used for purposes of charity, relief or benefit, and where any person engaged in and about such solicitation and/or sale receives, or is to receive, directly or indirectly, compensation or reward therefor, or where the person or agency doing the soliciting withholds a portion of the proceeds thereof as compensation or reward, unless a 'Charity Solicitation License' and a 'Charity Solicitor's License' are obtained for each drive or campaign for funds or property, according to and in compliance with the provisions of Ordinance No. 48022, as amended, and this ordinance. Such 'Charity Solicitation License', the fee for which is hereby fixed in the sum of One Thousand Dollars, ($1,000.00) shall be obtained by the person in charge of solicitations, and a 'Charity Solicitor's License', the fee for which is hereby fixed in the sum of One Hundred Dollars, ($100.00) shall be obtained by each solicitor, collector or salesman. The provisions of this ordinance shall not apply to the annual campaign of the Seattle Community Fund.'

The charge in each case recited that the defendant, 'as principal, managing agent or supervisor, and as solicitor, collector and salesman, did solicit, collect and receive money for the sale of tickets and he did represent that the proceeds of such solicitation and/or sale or any part thereof are to be used for purposes of charity, relief or benefit and did receive for such solicitation and/or sale or is to receive directly or indirectly compensation or reward therefor without having a license so to do.'

It further appeared that the defendants were arrested, brought Before the court, entered pleas of not guilty, and orally demurred to the complaint 'on the ground and for the reason that Sections 276, 245 and 246 of Ordinance No. 48022, as amended, on which the said complaint herein is based, are unconstitutional and void and that said complaint fails to state a cause of action or to charge a crime against the defendants.' The demurrers were sustained.

In the superior court the police judge presented a motion to dismiss the writ upon the ground:

'1. That said Writ does not lie, in that the Plaintiff, The City of Seattle, has a plain, speedy and adequate remedy at law, by appeal.

'2. That the Plaintiff gave notice in open Court that it appealed from the decision rendered in the Complaints designated as, The City of Seattle vs. D. Campbell and E. Rogers, respectively.'

After a hearing the court entered an order denying the motion, and decreed that the order of the police judge in sustaining the demurrers of defendants Rogers and Campbell be annulled and set aside. The police court was directed to take further proceedings in the cases against Rogers and Campbell consistent with the terms of the judgment.

William R. Bell, as police judge, has appealed from the judgment of the superior court urging that the court erred in not holding the ordinance to be unconstitutional, and in violation of § 12, Article I, of the Constitution of the state of Washington and Article I [section 1] of the 14th Amendment of the Constitution of the United States, U.S.C.A., in granting the writ of certiorari, and in directing that the defendants be held for trial.

Respondent has presented a motion asking that this appeal be dismissed upon two grounds: First, that the order appealed from is not a final appealable order, and, second, that the appeal was not taken...